MOORE, Judge.
Rodolfo Lopez was convicted in the district court for Madison County of one count of manufacturing a controlled substance or possession of marijuana with intent to distribute and one count of being a felon in possession of a firearm. On appeal, Lopez assigns error to the court's rulings on his motions to suppress and challenges the sufficiency of a search warrant obtained to search the premises where he resided. For the reasons set forth herein, we affirm.
Investigator Jason D. Sears of the Nebraska State Patrol applied for a search warrant for Lopez' residence on February 26, 2009. In it, Sears sought permission from the court to search for controlled substances, altered documents, counterfeit currency, firearms, and computers and other electronic data storage devices.
In support of the search warrant application, Sears stated that he had spoken with Veronica Vargas, Lopez' wife, on February 23 and 24, 2009. Vargas told Sears that she had filed for a protection order against Lopez on February 10 as a result of a domestic violence incident on February 9 at their home located at a particular Battle Creek, Nebraska, address. Vargas told Sears that Lopez was a felon, convicted for transporting drugs in Arizona, and that he had spent time in federal prison for this offense. Vargas told Sears that Lopez worked for Roaster Ranch, which owned the residence and hog sheds on the Battle Creek property.
Vargas told Sears that Lopez had several firearms, including a black shotgun that hung above the front door of the residence, and a small dark grey handgun that he kept on his person, in vehicles he drove, and inside the residence. She told Sears that Lopez was also storing some firearms in the basement of the house, including two older looking revolvers and a medium-sized handgun that resembled a police officer's gun. The last time Vargas saw these firearms was when she was in the residence on February 9, 2009.
According to Sears' affidavit, Vargas also told Sears that Lopez kept small bags of methamphetamine on his person and in a drawer in the basement and that he used methamphetamine on a daily basis. Vargas stated that Lopez had two computers and an iPod on which he stored information regarding the manufacture of methamphetamine, counterfeiting currency, and false identifications. According to Vargas, Lopez began counterfeiting currency in September 2008, using his computer and printer located at the residence. Vargas also stated that Lopez used a particular Albion, Nebraska, address as a marijuana growing operation. Vargas told Sears that Lopez had created secret compartments in two Dodge Ram pickups and a GMC Envoy to haul drugs. Vargas stated that Lopez sometimes drove to Fresno, California, to deliver drugs and sometimes he hired someone else to do so.
In his affidavit, Sears reported further on his investigation of the allegations made by Vargas. Sears found that a domestic assault report had been filed on February 8-9, 2009, by Vargas against Lopez and that troopers had responded to the address in question on those dates in regard to the assault. The troopers who responded to the assault identified a Department of Motor Vehicles photograph of Lopez as the person with whom they had contact on February 8-9. Sears conducted a Department of Motor Vehicles records check, which showed the same home address for Lopez as that identified by Vargas. Sears was informed by a Sergeant Edins of the State Patrol that both the Battle Creek and Albion addresses were owned by Roaster Ranch. Sears and other officers drove past the Battle Creek residence on February 23, where Sears observed a Ford Explorer and a GMC Envoy parked, and a large hog confinement shed nearby. One of the troopers who had responded to the domestic disturbance call told Sears that Lopez had informed the trooper that Lopez had three gun cabinets and quite a few firearms. Sears ran a criminal history check of Lopez and found that he had been convicted in 2001 of importing 288 grams of heroin in Arizona and had served 30 to 36 months in federal prison for the offense. On February 26, Edins informed Sears that thermal imaging was conducted on the Albion residence where Lopez was allegedly growing marijuana and that the imaging revealed considerably more heat generation from that residence than from other similar houses, which is indicative of the use of grow lights. Edins also advised Sears that the electric bill for the Albion residence was six times greater for February 2009 than for December 2008, also indicative of the use of grow lights.
A search warrant was obtained on February 26, 2009, and executed on February 27. Items seized as a result of the search of the Battle Creek property included some currency, two laptop computers and assorted storage devices, a police scanner and police "10 code" list, digital cameras and an iPod, cellular telephones, California I.D. cards with Lopez' name on them, marijuana (both plants and in processed form), four stun guns and cases, a .22-caliber Ruger Single-Six pistol loaded with six rounds, various other rounds of ammunition, plant food and rooting hormone, a marijuana pipe and sundry smoking accoutrements, several copies of High Times magazine, and various venue items.
A second warrantless search of the Battle Creek property, specifically of the hog shed, occurred on March 2, 2009, after John Willers, the overseer of the property, called the Madison County sheriffs office. Willers arrived on the property to clean up the shed following the butchering of a hog and found guns and material he suspected to be illicit drugs. Lopez was no longer on the premises, having been arrested on February 27 when the warrant was executed. The evidence reflects that the property was owned by Roaster Ranch, the entity identified in the search warrant affidavit as Lopez' employer. Willers was part of the investment group that owned Roaster Ranch. A real estate transfer statement admitted into evidence at the hearing on Lopez' first motion to suppress noted that the property taxes on the premises were sent to the attention of Willers at the Iowa address of the corporate owner of the property. Willers gave consent for a search of the hog shed from which guns and drugs were then seized.
The State filed an information on May 21, 2009, charging Lopez with possession of a firearm by a felon in violation of Neb. Rev. Stat. § 28-1206 (Reissue 2008), a Class III felony; manufacturing a controlled substance or possession of marijuana with intent to distribute in violation of Neb. Rev. Stat. § 28-416 (Reissue 2008), a Class III felony; and possession of a stolen firearm in violation of Neb. Rev. Stat. § 28-1212.03 (Reissue 2008), a Class IV felony.
Lopez filed a motion to suppress on September 8, 2009, in which he alleged that the information used to obtain the search warrant was stale, that the warrant did not establish probable cause for a variety of reasons, that the information contained in the application for the warrant was not from a citizen informant and the affidavit did not establish the informant's reliability, that the warrant was so broad it authorized a general exploratory search, and that the second search conducted on March 2 was unlawful and not performed pursuant to the warrant executed on February 27.
The district court heard Lopez' first motion to suppress on September 11, 2009. At that time, Lopez' counsel clearly stated that the hearing was not being conducted pursuant to an allegation under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L. Ed. 2d 667 (1978), and was simply an attempt to explore the "reliability of the informant." During the hearing, Sears testified about the procedure followed and order of things done in execution of the warrant as well as items seized as a result of the search. However, any other questioning, particularly about the information Sears obtained from Vargas was stopped by the district court, which observed that "we're stuck with" what is contained within the corners of the document. Lopez attempted to make a verbal offer of proof with respect to Vargas, but ended without really clarifying what the purpose of the offer was. The court received additional testimony from Randy Kalvelage, a deputy sheriff for the Madison County sheriffs office, who was dispatched to the Battle Creek property on March 2, 2009, following the call from Willers. Kalvelage provided testimony about the conduct of the March 2 search, as did Sears, who was contacted by Kalvelage on that date.
On September 18, 2009, the district court entered an order denying Lopez' first motion to suppress in its entirety. The court concluded from its review of the affidavit for the search warrant, that probable cause existed for issuance of the warrant. The court found that Vargas was a citizen informant, whose reliability was shown by her detailed information resulting from her presence in the house as Lopez' wife. The court rejected Lopez' argument that the information was stale at the time, noting that there is no bright-line test for staleness and that whether information is stale depends on the particular circumstances of the case. The court noted that the simple passage of time does not automatically render the information stale and that the time factor must be examined in light of the nature of the crime being investigated. The court observed that where the facts indicate activity of an ongoing and protracted nature, the passage of time becomes less significant and found "those circumstances" applicable in this case. The court noted that the question is whether, under the totality of the circumstances, the issuing magistrate had a substantial basis or that the affidavit established probable cause and that the magistrate's determination is given great deference. Based upon this analysis, the court concluded that the warrant was properly issued.
With respect to the March 2, 2009, followup search of the hog shed on the Battle Creek property, the district court found that Willers was a third party with authority over the premises and thus in a position to grant consent to search the hog shed. The court found that Willers was authorized to consent to a search of the shed notwithstanding the absence of a search warrant and that he gave such consent, making the second search a valid warrantless search.
On December 7, 2009, Lopez filed a second motion to suppress. In this motion, Lopez alleged that Sears had omitted information from the application and affidavit, namely, that Vargas had an active felony arrest warrant from California and that Trooper Chris Mannel's deposition of November 30 showed that the warrant existed. Lopez based this assertion on Mannel's deposition regarding his contact with Lopez and Vargas on February 8 in connection with the domestic dispute. Lopez attached the deposition to his motion as an exhibit. In the second motion to suppress, Lopez asserted that Sears' omission of the active warrant for Vargas was a material omission and either a deliberate falsehood or made with reckless disregard for the truth of the information contained in the affidavit. Lopez asserted that had the information been included in the search warrant application, it would have destroyed Vargas' status as a citizen informant and rendered the application without probable cause. Lopez sought a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L. Ed. 2d 667 (1978), and State v. Spidel, 10 Neb.App. 605, 634 N.W.2d 825 (2001). Lopez also attached a copy of a deposition of Sears to his motion.
The district court heard Lopez' second motion to suppress on December 18, 2009. A copy of the motion with the attached depositions and a fax from the Fresno, California, county sheriffs office were received in evidence in support of Lopez' request for a Franks hearing. The fax from the California sheriffs office listed two separate charges against Vargas ("DUI 10 ALCOHOL CAUS GBI," an "F" level offense, and "WILLFUL CRUELTY TO") for which a single bench warrant had issued. Mannel's deposition shows only that Vargas had "a warrant out of California with no extradition." Nothing else is mentioned in the deposition about the warrant. At the end of the hearing, the court denied Lopez' motion, finding that there was no showing by Lopez that Sears made a deliberate falsehood or that including the omitted information in the affidavit would have resulted in the affidavit being insufficient to establish probable cause.
Lopez waived his right to a jury trial, and a bench trial was held on March 2, 2010, during which he renewed his objections to the evidence obtained through the search warrant and the resulting searches. At the close of the State's case, the State dismissed the possession of a stolen firearm charge for lack of evidence. The district court found Lopez guilty of the remaining charges and sentenced Lopez to 3 to 5 years' imprisonment for being a felon in possession of a firearm and to a consecutive term of 3 to 5 years' imprisonment for manufacture or possession of marijuana with intent to distribute. Lopez subsequently perfected his appeal to this court.
Lopez asserts that the district court erred in (1) denying his two motions to suppress and finding that the affidavit contained sufficient information to establish a basis for the informant's knowledge and (2) finding that omission of information from the affidavit was not deliberate and that the omission was not material to the finding of probable cause for the warrant.
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010). Regarding historical facts, an appellate court reviews the trial court's findings for clear error. Id. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination. Id.
In his first motion to suppress, Lopez asserted that the affidavit for the search warrant did not establish probable cause. Lopez challenged Vargas' reliability as an informant and claimed that the information was stale. The district court rejected these claims and found probable cause for issuance of the search warrant. The court concluded that Sears' affidavit was based on Vargas' information provided as an informant and that Vargas was a citizen informant, whose reliability appeared from the detailed information she provided based on her presence on the premises as Lopez' spouse. We find no error in this determination.
A trial court's ruling on a motion to suppress, based on a claim of insufficiency of the affidavit supporting the warrant, will be upheld unless the court's findings are clearly erroneous. State v. Bossow, 274 Neb. 836, 744 N.W.2d 43 (2008). Where a search warrant is obtained on the strength of information from an informant, the affidavit must set forth facts showing the basis of the informant's knowledge of the criminal activity. State v. Lammers, 267 Neb. 679, 676 N.W.2d 716 (2004). An informant's reliability may be established by showing in the affidavit to obtain a search warrant that (1) the informant has given reliable information to police officers in the past, (2) the informant is a citizen informant, (3) the informant has made a statement that is against his or her penal interest, or (4) a police officer's independent investigation establishes the informant's reliability or the reliability of the information the informant has given. State v. Hernandez, 268 Neb. 934, 689 N.W.2d 579 (2004).
A citizen informant is a citizen who purports to have been the witness to a crime who is motivated by good citizenship and acts openly in aid of law enforcement. State v. Lammers, supra. The status of a citizen informant cannot attach unless the affidavit used to obtain a search warrant affirmatively sets forth circumstances from which the informant's status as a citizen informant can reasonably be inferred. Id. Unlike the police tipster who acts for leniency or some other selfish purpose, the citizen informant's only motive is to help law officers in the suppression of crime. Id. Unlike the professional informant, the citizen informant is without motive to exaggerate, falsify, or distort the facts to serve his or her own ends. Id.
In this case, the evidence in Sears' affidavit supports the district court's conclusion that Vargas qualified as a citizen informant. The affidavit identified Vargas by name and shows that she initiated contact with law enforcement to report her personal observance of criminal behavior. Lopez argues that Vargas had an ulterior motive because of the couple's domestic discord. The fact of the reported domestic attack was documented in the affidavit and thus was something the issuing magistrate was aware of at the time the warrant was issued. By identifying himself or herself by name, the informant is put in the position to be held accountable for providing a false report, which makes the informant more reliable. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004), abrogated on other grounds, State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
Even if Vargas and Lopez were not on good terms, her report to law enforcement was quite detailed, despite Lopez' assertions to the contrary, thus providing its own indicia of reliability. Once an individual is considered to be a citizen informant, reliability still must be shown, but it may appear by the very nature of the circumstances under which the incriminating information became known. State v. Lammers, supra. Thus, an informant's detailed eyewitness report of a crime may be self-corroborating, because it supplies its own indicia of reliability. Id. Further, an untested citizen informant who has personally observed the commission of a crime is presumptively reliable. Id. The fact that Lopez and Vargas were having domestic difficulties does not diminish the fact that Vargas openly contacted law enforcement and provided an eyewitness account of criminal behavior without expecting any benefit in return. In State v. Wollam, 280 Neb. 43, 783 N.W.2d 612 (2010), the Nebraska Supreme Court addressed a similar issue, although in the context of reasonable suspicion to stop the defendant's vehicle. In that case, the defendant's wife alerted law enforcement that the defendant was driving while drunk. The court essentially rejected the defendant's claim that his wife had an ulterior motive in calling law enforcement, because they were going through a divorce, finding that she was a citizen informant who personally observed the commission of a crime.
Lopez cites testimony presented by Vargas at later hearings and at trial to attack the reliability of the information presented in the affidavit, but in evaluating the sufficiency of an affidavit used to obtain a search warrant, an appellate court is restricted to consideration of the information and circumstances contained within the four corners of the affidavit, and evidence which emerges after the warrant is issued has no bearing on whether the warrant was validly issued. State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010).
The affidavit in this case included detailed information provided by Vargas, who was Lopez' spouse, about Lopez' status as a felon, weapons kept by Lopez on the property, and other criminal behavior, including Lopez' production, use, and transport of drugs. The district court did not err in finding Vargas to be a reliable citizen informant or in finding probable cause for issuance of the search warrant.
Lopez argues on appeal that he should have been given the opportunity to have a hearing on extrinsic evidence, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L. Ed. 2d 667 (1978). Lopez argues that the information omitted from the affidavit by Sears—the fact of Vargas' outstanding warrant from California—was material information, omitted deliberately or with reckless disregard for the truth.
In order to invalidate a warrant, a defendant must show both that the affiant made a deliberate falsehood or acted with reckless disregard for the truth and that the challenged material is "material," that is, necessary to a finding of probable cause. State v. Spidel, 10 Neb.App. 605, 634 N.W.2d 825 (2001). Omissions in an affidavit used to obtain a search warrant are considered to be misleading when the facts contained in the omitted material tend to weaken or damage the inferences which can logically be drawn from the facts as stated in the affidavit. Id. The role of an appellate court is to determine whether the affidavit used to obtain a search warrant, if it contained the omitted information, would still provide a magistrate or judge with a substantial basis for concluding that probable cause existed for the issuance of the warrant. State v. Thomas, supra.
The district court in this case found that there would still be probable cause if the omitted information was included in the affidavit. We agree. Vargas was a named informant, who provided detailed information about Lopez' activities based on her time spent on the premises as Lopez' wife. Lopez has not shown how the inclusion of the fact that Vargas had an outstanding "DUI" warrant in California would have destroyed the probable cause to issue the warrant. Lopez' assignment of error is without merit.
The district court did not err in overruling Lopez' motions to suppress.
AFFIRMED.
